VIDEOLINQ DATA PROCESSING AGREEMENT
Pursuant to the Videolinq services Agreement entered into between Videolinq and Producer, Videolinq processes certain data relating to Producer Customers in providing the Videolinq services. This Data Processing Agreement (“DPA”) sets forth the parties’ rights and obligations under data protection laws with respect to such data.
“Applicable Privacy and Data Protection Laws” means applicable privacy and data protection laws, rules and regulations applicable to the Videolinq services, including without limitation GDPR and any member state laws, rules, and regulations, including the UK Data Protection Act 2018, and any Federal or Provincial laws, rules and regulations in Canada, including the CPPA.
“CPPA” means Canada's Consumer Privacy Protection Act and the regulations promulgated thereto.
“GDPR” means the EU General Data Protection Regulation 2016/679 or the UK GDPR, as applicable.
“Producer” means a Videolinq customer that uses the Videolinq services to deliver Producer’s video content to Producer Customers.
“Producer Customer” means a data subject who has subscribed to or otherwise purchased Producer’s video service through the Videolinq services.
“Producer Customer Data” means the personal data and/or personal information (as may be applicable) of Producer Customers which is submitted to Videolinq in connection with the Videolinq services. Producer Customer Data does not include personal data and/or personal information collected by Videolinq outside of the Videolinq services.
“Standard Contractual Clauses” means the Standard Contractual Clauses for the Transfer of Personal Data from an EU controller to a non-EU or EEA controller, approved by EC Commission Decision of 27 December 2004, attached hereto as Schedule 2.
“UK GDPR” means the version of the EU General Data Protection Regulation 2016/679 signed into law by the government of the United Kingdom, as applicable, and if in force.
“Videolinq” means, for the purpose of this DPA, Videolinq Streaming Services, Inc., together with its wholly-owned subsidiary and subcontractor, Videolinq Streaming Services LLC.
“Videolinq services” means the video hosting and streaming platform applicable services provided by Videolinq pursuant to the Videolinq services Agreement and any associated Order Form or SOW.
“Videolinq services Agreement” means the Seller Addendum to the Videolinq Terms of Service Agreement, available at https://videolinq.com/terms, unless there is a separately negotiated agreement for Videolinq services between you and Videolinq, then “Videolinq services Agreement” means that agreement.
“Videolinq Policies” mean internal information security policies, including applicable retention schedules.
The terms “controller,” "data subject," "personal data," “personal data breach,” "processing," "processor," and "special categories of personal data" and their cognates shall have the same meaning as under the GDPR.
The terms “business,” "business purpose," "commercial purpose," "personal information," “process,” "sell," and "service provider" and their cognates shall have the same meaning as under the CPPA.
To the extent Producer is subject to the GDPR, the parties agree that with respect to such data, Producer is the controller, and Videolinq is a processor.
To the extent Producer is subject to the CPPA, the parties agree that with respect to processing Producer Customer Data in the provision of the Videolinq services by Videolinq, Videolinq is considered a service provider for Producer, which shall be considered a business.
Producer acknowledges and agrees that notwithstanding Section 2.1, Videolinq and its affiliates may collect and process certain data directly from data subjects in their capacity as users of other Videolinq services. Though these data subjects may also be Producer Customers, Videolinq acts as a controller for personal data collected or submitted outside of the Videolinq services.
The parties agree and acknowledge that the subject matter and details of processing are set out in Schedule 1.
3. Terms of Processing by Videolinq
Process Producer Customer Data for the provision of the Videolinq services to Producer according to the written instructions set forth in the Agreement or as otherwise instructed by Producer;
Process Producer Customer Data only for Producer business purposes and Videolinq business purposes; and
Ensure that anyone acting on its behalf will Process Producer Customer Data according to the provisions of this DPA and applicable data protection regulations, and is bound by an appropriate obligation of confidentiality.
Videolinq will not:
Sell the Producer Customer Data;
Retain, use or disclose the Producer Customer Data for any purpose other than providing the Videolinq services or for a permissible business purpose for service providers. Specifically, Videolinq shall not retain, use or disclose the Producer Customer Data for a commercial purpose; or
Retain, use or disclose the Producer Customer Data outside of the direct business relationship between Producer and Videolinq.
4. Terms of Processing by Producer
Producer agrees that it will:
Collect, use and process Producer Customer Data in accordance with any and all applicable data protection laws and regulations, including without limitation the CPPA and the GDPR;
Have sole responsibility for the accuracy, quality, and legality of Producer Customer Data and the means by which it was obtained, including where applicable, any consent necessary to lawfully process special categories of personal data; and
5. Security & Compliance
Videolinq shall Implement reasonable technical, organizational and security measures to protect the privacy and security of the Producer Customer Data.
Videolinq shall assist Producer, within reasonable timetables, by the appropriate measures and as reasonably possible (considering the nature of the processing and the information available to us), in complying with its obligations under Articles 32 to 36 of the GDPR.
Any storage and/or transfer of Producer Customer Data by Producer to any third party or platform other than Videolinq shall be at the sole risk and responsibility of Producer.
If Videolinq becomes aware of any personal data breach affecting Producer Customer Data, Videolinq will, without undue delay, provide notification to Producer in accordance with applicable regulations. Videolinq’s notification of a personal data breach will not be deemed as an acknowledgement by Videolinq of any fault or liability with respect to such incident. In the event of a personal data breach, Producer shall be obligated to take the measures required under applicable laws in connection with its Producer Customer Data. Where requested, Videolinq will assist Producer with communicating with regulators regarding the personal data breach.
Upon reasonable written request, Videolinq will make available to Producer information necessary to demonstrate compliance with its obligations under this DPA and applicable law.
Producer consents to Videolinq’s continued use of the sub-processors listed in Schedule 3.
Producer hereby grants Videolinq general authorization to change, or engage new sub-processors without obtaining any further written, specific authorization from Producer. Videolinq will notify Producer of any change or addition in sub-processors by updating Schedule 3 and/or providing notification by email. If Producer objects to any sub-processing by Videolinq, Producer should immediately discontinue its use of the Services.
Videolinq shall execute an agreement with each sub-processor with terms ensuring at least the same level of protection and security as those set out in this DPA. Subject to the limitation of liability set forth in the Agreement, Videolinq shall be responsible for all acts and omissions of any sub-processor who is processing Producer Customer Data.
7. Individual Rights Requests
Producer hereby instructs and authorizes Videolinq to take the appropriate measures to assist Producer in complying with its obligations under Articles 32 to 36 of the GDPR in responding to individual rights requests.
Videolinq will notify Producer when it receives an individual rights request for erasure or access to information relating to Producer Customer Data. It is Producer’s responsibility to supplement such request with any data or information not available to Videolinq, to the extent the provision of such supplemental information is required by law.
8. International Transfers
Producer understands and agrees that Videolinq operates the Videolinq service primarily from the United States and Canada and as such, Producer Customer Data will be transferred from Producer’s location and/or the applicable data subject’s location to Videolinq in the United States. If the Videolinq services involve transfer of Producer Customer Data from the European Economic Area, Switzerland, or the UK to a third country that does not ensure an adequate level of protection according to Applicable Privacy and Data Protection Laws, such transfer shall be subject to the Standard Contractual Clauses or a transfer mechanism other than the Standard Contractual Clauses (an “Alternative Transfer Mechanism”) made available by Videolinq, pursuant to this Section 8.
If Videolinq makes available an Alternative Transfer Mechanism, (a) Producer (as data exporter) will be deemed to be using it and will take any action required to give it full effect (including signing documents), and (b) Videolinq will ensure that the transfers are made in accordance with such Alternative Transfer Mechanism.
If Videolinq does not make available an Alternative Transfer Mechanism, (a) Producer (as data exporter) will be deemed to have entered into the Standard Contractual Clauses with Videolinq (as data importer); and (b) the transfers will be subject to the Standard Contractual Clauses.
If Producer has entered into the Standard Contractual Clauses but reasonably determines subsequently that they do not provide an adequate level of protection, and an Alternative Transfer Mechanism has subsequently been made available by Videolinq, such Alternative Transfer Mechanism shall apply to the transfers. If Producer has entered into the Standard Contractual Clauses but reasonably determines subsequently that they do not provide an adequate level of protection, and an Alternative Transfer Mechanism has not subsequently been made available by Videolinq, Customer may terminate the Agreement by written notice to Videolinq.
9. Term and Termination
This DPA shall be in effect for as long as such Producer uses any of the Videolinq services, provided however, that where Videolinq is obligated, according to the terms of this DPA or any Videolinq Policies, to keep Producer Customer Data following the termination of the Videolinq services, this DPA shall continue to be in effect for as long as Videolinq holds such data.
Upon termination or expiration of the Agreement, and unless Videolinq has a lawful basis to retain such Producer Customer Data under Videolinq Policies, any agreement or applicable law, Videolinq shall delete the Producer Customer Data as soon as reasonably practicable in accordance with Videolinq Policies and applicable laws.
Videolinq shall have the right to amend and/or adjust any of the terms of this DPA as may be required from time-to-time, in order to comply with any applicable laws or regulations.
Any questions regarding this DPA or requests from Producers to fulfill Individual Rights Requests should be addressed to firstname.lastname@example.org. Videolinq will attempt to resolve any complaints regarding the use of Producer Customer Data in accordance with this DPA and Videolinq Policies.
In the event of inconsistency with the terms of this DPA and any other agreement between the parties, the terms of this DPA shall prevail.
Schedule 1: Details of the Processing
Subject matter. The subject matter of the data processing under this DPA is Producer Customer Data.
Nature of the processing. Videolinq processes Producer Customer Data to provide the Videolinq Service, including such features and functionalities initiated by Producer. This includes:
(a) Producer uploading, hosting, managing, and streaming video content to Producer Customers;
(b) Processing transactions by Producer Customers and fulfilling orders made by such Producer Customers;
(c) Providing customer support to Producer Customers; and
(d) Providing all other features and functionality offered by the Videolinq Service that Producer chooses to use.
3. The duration of the processing is equal to the duration of Producer’s use of the Videolinq services.
4. Purpose. The purpose of the processing is the provision of the Videolinq services initiated by Producer.
Schedule 2: Standard Contractual Clauses
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organisation: the data exporter identified as “Producer” in the DPA
(the data exporter)
Name of the data importing organisation: Videolinq Streaming Services, Inc.
Address: 229 Yonge Street STE 40, Toronto, Ontario M5B 1N9, Canada
(the data importer)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorized access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
This Appendix forms part of the Clauses.
Data exporter is the Producer identified in the DPA.
Data importer is Videolinq Streaming Services, Inc., which processes personal data upon the instructions of the data exporter in accordance with the terms of the Agreement.
The personal data transferred concern the following categories of data subjects:
Customers of data exporter
Employees of data exporter
Categories of data
Online identifiers (e.g. IP address, device information, location information, username)
Activity Information (e.g. likes and comments, activity logs)
Special categories of data (if appropriate)
None are anticipated.
The personal data is processed by data importer for the purpose of performing the Services pursuant to the Agreement.
Technical and Organizational Security Measures
Description of the technical and organizational security measures implemented by the data importers in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organizational security measures implemented by the data importer are as described at: https://help.videolinq.com/en/articles/5137144-security-provided-by-videolinq
Schedule 3: Existing Sub-processors
Updated March 29, 2021.